CONSUMER DISPUTES REDRESSAL COMMISSION-VII

DISTRICT: SOUTH-WEST

GOVERNMENT OF NCT OF DELHI

FIRST FLOOR, PANDIT DEEP CHAND SHARMA SAHKAR BHAWAN

CASE NO.CC/454/16

          Date of Institution: -   25.10.2016

          Order Reserved on: - 21.05.2024

                        Date of Decision: -     25.09.2024

IN THE MATTER OF:

Sh. Yogesh Kumar,

S/o Shri Rajesh Kumar

R/o WZ-139C New Mahavir Nagar,

Gali No.7, Delhi                                                                                                                                                                     .….. Complainant

VERSUS

1. M/s Sehgal Chemist and Druggist

Shop No.1, DDA Market,

Community Center (Near PVR)

Phase-I, Naraina, New Delhi

2. Medli Fe International Pvt. Ltd.

Grope Garden, 5^th Floor,

Tower D, IBC Knowledge Park

4/1, Banarghatta, Main Road,

Bhawani Nagar, Saddaguntle Playa,

Bengaluru, Karnataka,

PIN No. 560029.…..Opposite Parties

Per Dr. Harshali Kaur, Member

1. Briefly stated, the facts of the case are that the complainant's wife,who was pregnant, consumed the medicine VIZAPROT DHA Powder that the complainant had ordered through OP-2 on 02.09.2016 after her doctor advised the same. It is the complainant's case that the medicine was sent to him on 06.09.2016 by OP-1, the seller. He paida consideration amount of Rs.235/- for the medicine. The complainant has annexed the invoice issued by OP-1 on page no.14 of his complaint.

2. The complainant alleged that the medicine sent to him had expired, and the expiry date of July 2016 was reflected on the box, along with its manufacturing date in February 2015. The wife of the complainant consumed the medicine and was in critical condition due to the expired medicine sent by the OPs. The complainant has annexed the pictures of the medicine label to show the manufacturing and expiry date on page no.15 and the OPD card of one Mrs. Prabhjot Kakkar dated 28.08.016 onpage no.16 of the complaint.

3. The complainant approached the OPs to pay him damages, but neither OP-1 nor OP-2 resolved his grievance. Hence, alleging deficiency in service, the complainant filed the present complaint before this Commission. He has prayed for settlement and payment of damages to the tune of Rs.6 lakh and Rs.50,000/- towards litigation costs.

4. On notice, the OPs filed their individual replies. OP-1, in their reply, stated that the present complaint is completely fabricated and is a falsely concocted story, as the complainant made contradictory statements before filing the instant case before this Forum. When the complainant approached OP-1 with his complaint regarding the receipt of the expired product, he was requested to produce the box, which would have clarified his averments. He, however, refused to do so and instead filed the present complaint.

5. As per records maintained by OP-1, the product ordered by the complainant, the VIZAPORT DHA Powder, was well within the consumable period with expiry in May 2017. The complainant has neither placed the box on record nor filed any document to show his wife suffered any complications due toconsuming the protein powder. Hence, the case deserves dismissal.

6. OP-2, in their reply, stated that OP-2 is simply a facilitator of technical services and does not control the sale transaction or render any services through its website to its users. It is merely an online marketplace with no separate contract with the complainant.

7. The complainant filed a rejoinder and affidavit in evidence qua the OPs reiterating the averments made in this complaint. OP-1 filed the affidavit of Sh. Vijay Kumar Sehgal, Proprietor of OP-1 and OP-2, filed the affidavit of PyllaJayavardhan, Head Legal and compliance of OP-1, echoing the statements made in their individual replies.

8. The complainant filed his written argument. The OPs did not file their written arguments nor addressed oral final arguments on the date fixed for the same. Hence, we heard the complainant,who appeared in person and gave the OP the liberty to address oral final arguments within 05 days, which opportunity they did not avail of.

9. We have carefully gone through the facts and circumstances of the present case and have perused the documents filed by the contesting parties.

10. We find that the complainant purchased a medicine VIZAPORT DHA Powder for his pregnant wife through OP-1 on 02.09.2016. He received the medicine on 06.09.2016. The complainant alleges that the medicine he received from the seller, OP-1,had already expired, with the expiry date reflecting on the box as July 2016 and the manufacturing date mentioned on the box as February 2015.

11. After imbibing the medicine, his wife fell critically ill, and he came under substantialfinancial strain due to her treatment. Hence the complaint.

12. OP-1, in their testimony, claims that when the complainant approached OP-1 with his grievance, he was asked to produce the box, which reflects the manufacturing and expiry date. However, he did not bring the same to OP-1 and instead filed the present complaint before this Forum. As per their records,the protein powder sent to the complainant was within the consumable period, with its expiration date being May 2017.

13. OP-1 further states that the complainant has filed acopy of the prescription of one Mrs. Prabhjot Kakkar on record but has not whispered a work of the treatment he claims to have spent a substantial amount on for his wife due to the complications.

14. OP-2, in their reply, has stated that they are merely an online marketplace,and the sellers are responsible for their products on the OP-2 website as OP-2 is not involved in the sale of the products. Hence, OP-2 cannot be held liable for the complainant's grievance with OP-1 as the complainant is not the consumer of OP-2.

15. A bare perusal of the Batch Number reflected in the picture filed by the complainant of the label of the box of medicine/protein powder thatthe complainant claims to be the one OP-1 sent to him clarifies as below:

• , Mfg February 2015, Exp.-July, 2016 MRP-Rs.235/-.

16. In comparison, the Bill/Invoice/Cash Memo annexed by the complainant with his complaint onpage no.14 reflects the VIZAPORT DHA Powder with Batch No. VZTD-1500 and expiry as 5/17 and Rate as 235.00.These two documents are enough to falsify the complainant's statement that the medicine he received was expired. It clearly shows that he has filed this fictitious case with some illegal intent and has filed the label of some other medicine to hoodwink the Forum.

17. Further, the prescription filed by the complainant onpage no.16 of his complaint for one Mrs. Prabhjot Kakkar nowhere mentions that she is the complainant's wife, nor has he filed any affidavit towards this, for reasons best known to him. He has also not filed any treatment records to substantiate his claim that she suffered from critical illness after consuming the expired powder, due to which he came under substantial financial loss.

18. The order sheet dated 25.10.2016 also reflects that this Forum directed the complainant to deposit the box of the allegedly expired medicine as evidence to be sealed and preserved in the Forum. However, the complainant did not comply with the directions of the Forum and did not bring the box to the Forum. 

19. Hence, we do not find that the complainant has placed any cogent evidence on record to substantiate his claim, and thus, we dismiss the present complaint,leaving the parties to bear their own costs.

• A copy of this order is to be sent to all the parties as per rule.
• File be consigned to record room.
• Announced in the open court on 25.09.2024.